32 F. 645 -

32 F1d 645

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Case Text

SMITH V. HARPENDING.

645

be true, it appears on the face of the record, which Includes the petition and the pleadings and proceedings down to that time, that the petitioner is enti. tIed to a removal'of the :suilil' That question tbe state court bas the right to decide." We have here then no question ofjurisdiction but the question whether, when the character of the plaintiff's bill in the very particular involved has been determined. by It state court of competent jurisdiction between the same parties in the same action, the same question can be opened for a new and different determination by this court, upon a motion like the present. While the cause in the state courtior the purpose of determining whether the bill disclosed a separate controversy between the plaintiff and the defendant Alley, the state court decided that the bill did not disclose a separate controversy: and now, with that determinationstanding unreversed, the defendant upon this motion setiks to have this court deCide that the bill does disclose a separate controversy. In my opinion the decision of the state court cannot be reviewed in this way. The:prior determination of the state court, that the plaintifi"s bill discloses no separate cause of action against the defendant Alley J standing unreversed,estops the defendant from asserting the contrary upon a motion like the present. The reason of the rule forbidding parties to litigate anew already litigated between them in a court of competent jurisdiction, seems to be of full force in a' proceeding like this. An added ground for the application of the rule in this instance is to be found in the fact that a contrary decision will compel the spectacle of a suit prosecuted in the state court upon the ground that the bill discloses no separate controversy, and at the same time prosecuted in the federal court upon the ground that the bill does disclose such a controversy. Another reason for declining to review on this occasion the decision of the state court is afforded by the fact that, while the decision of the state court is open to be reviewed, not only by the court of appeals, but also by the supreme court of the United States, by a writ of error, the right to appeal from the decision of this motion has been taken away by the act of 1887. Upon these grounds, the plaintiff's motion to remand is granted.

SMITH

v.

HARPENDING

and another.

November 4, 1887.)

Court. E. D. New York.

On Motion to Remand. 9. M. Ha1'wood, for plaintiff. Robt. 9. Ingersoll and Robt. H. 9riffin. for defendants.
BENEDICT, J. This case comes up before the court upon a motion to remand. The facts bearing upon the question of removal are similar to the facts stated by this court in deciding the case of Mary Beadleston against the Rame defendants, 644.) The bill in this case differs from the bill in that

REPORTER.

; case, but in thisc/tse; as iq. th$t, tbe stateeourt has, $ftel' bearing the parties, a separate controversy as to the defenddecided that the bill doea ant 1\Uey. Xhe reasQusfor remanding the cQ,B6stated in the case of Beadleston are applicable here, and the same result must follow. The motion to remand is granted.

EtLIE! f7. INSuRANCE

Co.

OF NORTH AMERICA.

(OircuitOourt, S. D. linea, E. D. 1887.)
1.

A policy of insurance, under which plaintiff brought an action to recover for the loss by fire of ptoperty incumbered by mortgages, stipulated that if the interest of the assured in the pr'operty "does not amount to the entire, sole, and absolute ownership, it must in every such case be so represented to the company, and' clearl?: expressed in the body of the policy, otherwise there will be no liability' thereunder, as to such property or limited interest. Held, that the stipulation does not refer to the matter of incumbrance,but to the character and quality of the th.e, whether that of a fee simple or leasehold or otherwise.
Oil' 011' ENTIRE INTEREST.

2. SAME-FoRFEITURE-COVENANT-AsSIGNMENT. A policy of insurance covering property incumbered by mortgages executed subsequent to its issuance was assigned to the purchaser of the property with the consent of the company, "subject to all the terms and conditions of insurance mentioned and referred to" in the policy, which provided that the acquiring by a third party of all insurable interest in the property by virtue of a mortgage executed by the assured subsequent to the date thereof Elhould cause the immediate termination of the policy, unless otherwise provided by special agreement expressed in the body of the policy. Neither the company nor the purchaser and assignee had any actual knowledge of the existence of the at the time the company gave its consent, or when the purchase and aSSIgnment were made. Held, that the consent of the company to the transfer of the policy was the creation of a new. contract, and the assignee took it free of all vitiating circumstances, and upon the same terms as those upon which it was originally issued to the and that the company was estopped from denying its validity, either on the grounds of ig-no1 rance or for want of consideration.

Motion for New Trial. . William L. Ellis, as assignee of certain policies of insurance, brought suit against the Insurance Company of North America to recover for the loss by fire of a stock of goods and building under four policies issued by the said compny, to E. R. Ellis & Co.,a firm composed of E. R. Ellis alone. The first policy was issued June 10, 1881, insuring a stock of merchandise for $500. The second policy on said stock was for $500, and dated October 10, 1881. The third policy l dated August 20,1881,
lIt has been held in'Iowa,in ahactionbrought by the assignee of an insurance policy, which had been transferred with the cOllsent of the company, that the latter was 110t precluded frOID setting up the defense that the policy had become void in the hands ofthe assignor by reason of a violation of the condition against" incum,brances," the . existence of the incumbrance not having come to the knowledge of the compar.y at the tim'll of the assignment. Ellis v. 1nsura11ceOo., 27 N. W. Rep. 762. But see dissenting opinion. Id. 765.